OSHA Issues Final Ergonomics Standard

On November 14, 2000, the U.S. Occupational Safety and Health Administration (OSHA)published a final Ergonomics Standard in the Federal Register at 65 FR 68262-68870. This far-reaching rule imposes a complex bureaucratic maze on millions of manufacturing, service, financial, education, and other general industry employers.

The final rule addresses the risk of work related musculoskeletal (MSD) injuries and illnesses in the workplace. This ergonomics rule, which is opposed by the U.S. Chamber of Commerce, the National Association of Manufacturers (NAM), the National Coalition on Ergonomics (NCE), and other business groups, provides a sweeping set of standards that OSHA believes will reduce injuries and illnesses in the workplace environment. OSHA has concluded that MSD injuries, which account for one-third of all occupational injuries and illnesses, can be reduced through the implementation of its ergonomics program. This final rule can affect approximately 6.1 million workers and 102 million employees. MHI is strenuously opposed to any type of ergonomics program being initiated for the manufactured housing industry.

The final rule was completed just twelve months after publication of the proposed rule, is significantly broader than the original proposal, and includes numerous provisions never subjected to public review. General industry will have to implement a comprehensive ergonomics program if just two employees claim to have experienced a sign or symptom of an MSD, such as carpal tunnel syndrome or lower back pain. Employers, and possibly even OSHA inspectors, may face uncertainty and confusion in applying the final rule’s many processes and undefined terms to the diverse workplace environment.

OSHA has estimated that the final rule will cost $4.5 billion annually (based on an average cost of $250 to fix a workstation). However, the business community has estimated a staggering cost of between $18 billion and $125 billion annually.

In response to the proposed rule issued back in November of last year, MHI joined the NCE. The NCE is an off shoot of NAM. MHI has become a party to a lawsuit that was filed during the week of November 20, 2000 in the U.S. Court of Appeals for the District of Columbia on behalf of the NCE to block the ergonomics final rule. While the American industry pursues a legal avenue to block this new final rule, there is still some hope in the political arena. By the time you read this, the outcome of the presidential election may have a positive impact for our industry. Some business interests believe that should Republican presidential nominee and Texas Governor George W. Bush become president of the United States, he would rescind the ergonomics final rule.

This final rule can affect almost the entire manufactured housing industry. Manufactured home producers will be included since they employ assembly line techniques and manual lifting jobs on a daily basis to produce manufactured home sections. Many suppliers of products to the manufactured home industry would also be affected in the same manner. Manufactured home retailers and community owners can also fall under the OSHA ergonomics program that pertains to office environments. It targets workers who sit in front of a computer screen all day, typing and using a mouse. There are only three facets of the United States general industry that would not be affected by the ergonomics program: the maritime, construction and agricultural industries. Manufactured home installers would be exempt from the new rules since the manufactured home set-up would be considered a part of the construction industry.

MHI emphasized in out testimony before the OSHA Ergonomics Panel in May of this year that our homes are built no different than conventional site-built housing. We use the same products, materials and worker motions to construct manufactured homes as do site builders. The only difference is that manufactured homes are built under one roof, thus putting the onus on our industry simply because we implement assembly line techniques to construct our homes. However, OSHA ultimately rejected our arguments to exclude manufactured home construction under the final rule.

There is no absolute manner to control the hazards of repetition, vibration and physical force required in the production facility setting of manufactured home construction. MHI has argued that OSHA should recognize that the bulk of the work completed in a manufactured housing production facility is very similar to the work completed in site-built homes. Consider that both home types are built with heavy toilets that must be lifted, electrical wires that must be pulled through wall studs, pneumatic hammers that must place nails, flooring that must be sanded and lumber that must be hoisted. Since OSHA has acknowledged how difficult it would be to regulate ergonomics hazards in the construction industry, MHI emphasized that it would be equally difficult to control these same hazards of construction inside the production facility.

A summary of the ergonomics standard is provided below. The 600+ page final rule can be accessed from the Federal Register at www.access.gpo.gov/su_docs/fedreg/frcont00.html. This final rule is significantly more broader than the proposed rule and includes numerous provisions never subjected to public review during two months of public testimony back in March - May 2000.

Scope

The standard applies to all major industries except the maritime, construction and agricultural industries.

Initial Action

The standard requires employers to provide information to every employee about MSDs; how to report them; the kinds of risk factors, jobs and work activities associated with MSD hazards; and the requirements of the OSHA Ergonomics Standard.

Further Action

The standard imposes many confusing requirements on employers to determine whether they have any further obligations. First, the employer must determine whether an MSD incident has occurred. If one has, the employer must then determine if an employee experiencing an MSD incident has a job that routinely involves, on one or more days a week, exposure to one or more of the relevant risk factors at or above one or more of twelve defined action triggers.

MSD Incident

An MSD incident occurs when an employer determines that on employee has experienced 1) a work related MSD that requires a day away from work, restricted work, or medical treatment, or 2) an MSD symptom (pain, numbness or tingling) that persists for seven consecutive days. Work related means that working conditions caused or contributed to an MSD or significantly aggravated a pre-existing MSD. The ergonomic program permits the employer to obtain a medical opinion from a health care professional (HCP) to assist in determining work relatedness and whether any work restrictions are appropriate. The ergonomics program prohibits an HCP from disclosing to the employer information about non-work related factors, which may have contributed to the employee’s condition. This limitation will preclude employers from making a fully informed decision as to the cause of a worker’s condition and the appropriate remedial action.

Action Triggers If an employee experiences an MSD incident, the employer must determine whether the employee’s job routinely (on one or more days per week) exceeds one or more of twelve action triggers. These triggers involve repetition, force, awkward posture, contact stress and vibration. These triggers include using a keyboard for more than 4 hours per day, kneeling or squatting for 2 hours per day, and numerous lifting thresholds. This analysis will consume substantial time and resources (measuring the duration and frequency of various activities for each individual worker), and pose innumerable difficulties for employers who lack a full-time ergonomist. Employers will struggle to define when a job involves the same motions every few seconds, a cycle of motions more than twice per minute, use a keyboard in a steady manner, lifting at arm’s length, pushing/pulling with more than 20 pounds of initial force, pinching, gripping force equivalent to 10 pounds, high vibration levels, or working with the back, neck or wrists bent or twisted.

Additional Obligations

If an employer determines that an employee has experienced an MSD incident, and that the employee’s job routinely exceeds one or more of the action triggers, the employer must either follow the ergonomic standard’s quick fix provisions, or develop and implement a comprehensive ergonomics program.

Quick Fix

If within the previous 18 months, an employer has had only one MSD incident in a given job workstation, and no more than two incidents overall, the employer may elect to provide a quick fix instead of implementing a comprehensive program. However, this quick fix option entails most of the actions required as part of a comprehensive ergonomics program. These obligations include providing the employee who experienced an MSD incident with 1) a medical follow-up and medical management, 2) access to HCPs, 3) temporary work restrictions (if recommended by the HCP), and 4) wage replacement for up to 90 days. In addition, the employer must consult with employees in the same job category, ask them to recommend remedial measures, observe them performing their jobs, implement controls that reduce MSD hazards to levels below those in the standard’s hazard identification tools within 90 days, train employees in the use of these controls, review the jobs within 30 days after implementing the controls to assess whether MSD hazards have been reduced, and keep records of the quick fix process for each job to which it has been applied. If the MSD hazard is not reduced sufficiently, the employer must implement a comprehensive ergonomics program.

Comprehensive Ergonomics Program

This program must include the following bullet items to be considered a comprehensive ergonomics program.

- Management leadership, including assignment of program responsibilities; provision of necessary authority and resources; encouragement of early reporting of signs and symptoms and employee participation in the program; and periodic communication with employees about the program.

- Employee participation, including a system for employees to report MSD signs, symptoms, and hazards and receiving responses; provision of information to employees regarding the standard, MSD hazards, signs and symptoms, and the employer’s program; and employee involvement in the development, implementation, and evaluation of the program.

- Job hazard analysis of all job workstations or categories in which an MSD incident has occurred, 1) using either one of the hazard identification tools referenced in the final rule, a trained ergonomist, or any other reasonable method that is appropriate to the job and relevant to the risk factors addressed, and 2) including consultation with affected employees, observation of employees performing affected jobs, and evaluation of the magnitude, frequency, and duration of exposure to MSD risk factors.

- Reduction of the MSD hazards either below the levels set forth in one of nine hazard identification tools (which were neither drafted by OSHA, nor intended to impose mandatory obligations, and which may require an ergonomist to decipher and apply); using engineering controls (redesign of workstations, equipment or processes), work practice controls (changing the manner the work is performed), administrative controls (job rotations or changing the pace of work); implementation of initial controls that reduce the exposures within 90 days of determining that an action trigger has been met; implementation of permanent controls within two years of such determinations (or January 16, 2005, whichever is later); and tracking progress towards MSD hazard reduction goals which includes consultation with employees.

- MSD management for employees who experience an MSD incident, including access to HCPs; use of a tie-breaking procedure in the event that two HCPs reach different conclusions; a written medical evaluation; follow-up; and adherence to any work restrictions or time off recommended by the HCP.

- Work restriction protection (wage replacement) for employees unable to work their regular job due to an MSD, including 100 percent wage replacement for workers on restricted duty (even if the light duty job they are performing pays less), and 90 percent wage replacement for workers unable to work for up to 90 days.

- Training for employees in jobs covered by the program, on an initial basis as well as at least every three years thereafter; including training regarding the ergonomics standard, the employer’s program, MSD signs and symptoms, the reporting system, MSD hazards and risk factors in each employee’s job, the employer hazard abatement plan, MSD hazard controls, and employee involvement in evaluating the effectiveness of controls.

- Program evaluation when the program is not functioning properly and at least every three years; includes consultation with employees, review of each program element, a determination as to whether the program is achieving positive results, and prompt correction of any program deficiencies.

- Record keeping, including employee reports, employer responses, job hazard analyses, hazard control measures, quick fix operations, program evaluations, and HCP opinions.

Grandfather Clause

The ergonomics standard includes a grandfather clause for programs implemented by November 14, 2000. Qualifying programs are exempted from some of the ergonomic standard requirements. In order to qualify, certain elements of the program must be included such as management leadership; an MSD reporting system; prompt responses to MSD reports; regular communication with employees; employee participation in evaluating and future development of the program; job hazard identification and analysis; feasibility engineering, work practices and administrative controls for job hazards; reduction of job hazards below levels in the egronomics hazards identification tools; evaluation of controls; employee training; program evaluation; and correction of identified program deficiencies. To qualify for grandfathering any part of the program, employers must have an ergonomics program in place that complies with virtually all of the same requirements. To qualify existing programs under the grandfather clause, OSHA must approve of the qualifying program by January 16, 2001.

Compliance Deadlines

The standard becomes effective on October 14, 2001. Most of the standard’s obligations are required within certain time periods (seven days to two years) after an employer determines that an action trigger has been met. The standard provides separate deadlines for implementing permanent MSD hazard controls (January 16, 2005).

Enforcement

OSHA inspectors may experience as much difficulty and confusion as employers in attempting to apply the ergonomics standard’s bureaucratic maze and vague terminology to the diverse workplaces found in the U.S. Employers can expect significant variations in enforcement. This OSHA ergonomics standard may cause more confusion than any other OSHA rule, given the complexity in addition to the causation and correction of MSDs in the workplace.

Unless and until the federal courts, Congressional and/or a potential Bush administration intervenes, it is likely that employers across the country will be required to quickly familiarize themselves with the multi-faceted requirements of the OSHA Ergonomics Program Standard. Its potential application in the manufactured housing industry can affect all aspects except home installers.

MHI encourages all members to notify MHI (Attn: Mark Nunn) if they already have ergonomic safety programs in place prior to November 14, 2000. In the event that this final rule is implemented, those who had qualifying safety programs could be grandfathered, thus exempting certain aspects of the production facility from the comprehensive ergonomics program requirements. We also encourage members to obtain a copy of the 600+ page final rule from the Federal Register website for review by whoever is responsible for your safety related programs. Acting now would put fewer burdens on your company should other avenues to block ergonomics intervention in the manufactured housing industry, and general industry, fail to be successful.

MHI is reviewing the final ergonomics rule to determine compliance requirements that will be necessary for the entire manufactured housing industry. MHI’s course of action is to attempt to develop guidelines that all segments of the industry can use. According to the final rule, all affected industries must implement an ergonomics program no later than four years upon the final rule effective date of January 16, 2001. Until this time, MHI will vigorously defend the position that this final rule is both unfair and unfounded to our industry. Please contact Mark Nunn at (703) 558-0665 or mark@mfghome.org for further information. Additional information concerning the OSHA Ergonomics Final Rule, and the legal ramifications that the NCE is involved with, can be reviewed on the NCE website at www.ncergo.org.